High Court Patna High Court - Orders

Vinay Sharma vs The State Of Bihar & Ors on 12 July, 2011

Patna High Court – Orders
Vinay Sharma vs The State Of Bihar & Ors on 12 July, 2011
                         IN THE HIGH COURT OF JUDICATURE AT PATNA
                                     CWJC No.2946 of 2009
                                         Vinay Sharma
                                             Versus
                                    The State Of Bihar & Ors
                                            -----------

3. 12.07.2011 Heard learned Counsel for the petitioner and the learned

Counsel for the State.

The petitioner was placed under suspension on 17.3.2006. A

memo of four charges was issued on 20.4.2006. The petitioner filed

CWJC No. 4140 of 2006. The Court by a considered order at paragraph

8 of the same quashed the resolution of the State Government initiating

the departmental proceeding as also the memo of charges.

The charges related to the year 2002-2003.The petitioner is

stated to have superannuated on 31.1.2008. On 22.5.2008 the

respondents are alleged to have initiated proceeding against him under

Rule 43 (b) of the Pension Rules in context of the charges quashed by

the Court.

The writ petition was filed on 3.3.2009 after serving two copies

of the same in the office of the Advocate General. The second copy was

to facilitate expeditious filing of a counter affidavit to assist the Court in

timely dispensation of justice. The matter was listed on 4.3.2009 when

four weeks’ time was granted to file counter affidavit. Nearly two and

half years since the date of filing of the writ petition has not been

considered sufficient by the respondents to file a counter affidavit. The

Court nonetheless on 11th July passed over the matter to enable the

Counsel for the State to seek instructions why no counter affidavit was

being filed. He submits that he has received a written instruction from

the Joint Secretary, Water Resources Department dated 12.7.2011

instructing him to seek further time of at least two weeks for filing of the

counter affidavit.

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Those who hold power vested by the Government do so in trust

and as a trustee of the State Government which believes that they shall

act in its best interest to protect its actions and claims. The Government

has every right to contest a litigation before a Court and justify its action.

But that cannot be turned into an excuse by the trustees to linger the

proceeding and delay it to the maximum extent possible so that it

virtually results in denial to access of justice to citizens approaching the

Court. There can be no two opinions that for a person who is

superannuated a proceeding under Rule 43 (b) of the Pension Rules is

an extremely serious matter. The respondents sanguine in the safety of

their office seem to be unconcerned.

The Court is constrained to observe that the trustees of the

State Government appear to be labouring under a misconception that

that no matter how much time may have passed since the writ petition

may have been filed, to ask for an adjournment for filing a counter

affidavit at the first hearing irrespective of the date of filing the writ

petition, was a vested right. That the Government was a privileged

litigant, where the citizen must stand and wait for justice.

In pursuance of the National Litigation Policy the State

Government has framed the Bihar State Litigation Policy 2011

published in the Bihar Gazette on 31.3.2011. The objective of the policy

is to transform the State Government into an efficient litigant. Meaning

thereby conducting litigation in a cohesive, co-ordinated and time bound

manner. Clause IV (d) of the Policy dealing with adjournment states that

unnecessary adjournment on behalf of the State should be avoided,

they will be frowned upon and infraction dealt with seriously. In fresh

litigation where the Government was a defendant or respondent in the

first instant a reasonable adjournment may be applied for, for obtaining
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instruction. It must be furnished with such instructions and made

available and communicated before the next date of hearing. The Nodal

Officer and if necessary the Head of the Department is answerable. If

there are repeated adjournments serious note will be taken of the

negligence and default of the respondents concerned and it will be dealt

with appropriately by referring such cases to the Empowered

Committee. Clause V states that filing of counter affidavit should not be

delayed. It is now for the respondents to do some soul searching with

regard to the materials noticed in the present order.

Adjournment granted subject to cost of Rs.10,000/- to be paid by

the State Government within a period of ten days before the High Court

Legal Services Committee Patna and receipt filed within that period.

The Counter affidavit must explain the reasons for the delay

fixing responsibility in accordance with the State Litigation Policy and

making a clear statement from whose salary the amount has been

deducted along with proof in support thereof.

Today the delay in dispensation of justice and the clogging to

the dockets of the Court is a matter of concern for one and all.

Repeated seminars and workshops are being held to find out a solution

of this problem. Perhaps as long as the attitude of the present nature as

discussed in this order persists the solution may be difficult to be found.

The petitioner desires quick justice. The Court is willing to hear the

matter. The respondents ensure that it is not heard.

Pending disposal of this application there shall be stay of the

order dated 22.5.2008.

List after four weeks at the same position for final disposal at the

admission stage, if possible.

Snkumar/-                                         (Navin Sinha,J.)
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